The Tribe received a lump sum payment and ongoing revenues in exchange for transferring its rights in Tribal trust land to the operator of the Wells Hydroelectric Project (the Wells Dam). When the federal government grants a license to operate a dam on Tribal land, federal law requires that the licensee pay a reasonable annual charge to compensate the tribe. 16 U.S.C. § 803(e)(1). A 2004-settlement agreement (the Agreement) between the Tribe and Public Utility District No. 1 of Douglas County, Washington (PUD), established the compensation that the PUD would provide the Tribe for the PUD’s Wells Dam operation on land the Tribe claimed as its own. Under the Agreement, the Tribe and PUD each transferred land rights and the PUD paid the Tribe $13.5 million. The Tribe and the PUD also signed a power sales contract giving the Tribe a right to a percentage of the output of the Wells Dam for the remainder of the PUD’s existing license and the term of any new license.

Tribal members age 55 and older receive quarterly per capita distributions paid from funds the Tribe received under the Agreement, and that the Secretary has held in trust. The Superintendent of the Department of Interior confirmed by letter that these funds held in trust are “only distributed as allowed by federal law and Colville Tribal Resolution.”

Agency regulations define income as “anything you receive in cash or in kind that you can use to meet your needs for food and shelter.” 20 C.F.R. § 416.1102. They also state that the agency does not count all income towards Supplemental Security Income (SSI) eligibility requirements, and acknowledge that some federal laws other than the Social Security Act (Act) preclude the agency from counting certain unearned income for SSI purposes. 20 C.F.R. §§ 416.1100, 416.1124. The agency identifies laws relating to unearned income counting in 20 C.F.R. Part 416, Appendix to Subpart K. Likewise, the agency recognizes that federal statutes may require certain payments or benefits to be excluded as resources for SSI purposes. 20 C.F.R. § 416.1210(j).

POMS SI 00830.830C., identifies several federal laws providing that certain types of payments made to members of Indian Tribes are excluded from income and/or resources. Each of these laws is also identified in the Appendix to Subpart K. One of these laws, the Per Capita Act, P.L. 98-64, applies directly to the settlement payments at issue here and exempts the funds from being counted as income or resources.

The Per Capita Act applies to funds held in a trust account by the Secretary for an Indian Tribe that are to be distributed per capita to members of the Tribe. 25 U.S.C. § 117a. Pursuant to that law, such funds may be distributed either by the Secretary or by the Tribe (with the request of the Tribe’s governing body and approval of the Secretary). 25 U.S.C. § 117a. Funds distributed under the Per Capita Act are subject to 25 U.S.C. § 1407, meaning they are not considered as income or resources for the Social Security Act’s entitlement purposes. 25 U.S.C. §§ 117b(a), 1407.

Tribal members age 55 and older receive Wells Dam settlement distribution payments from funds held in trust by the Secretary, and the Department of the Interior confirmed these funds are only distributed pursuant to Colville Tribal Resolution. Thus, these payments fall within the exemption under the Per Capita Act, which excludes the payments from income and resources.

Under the Per Capita Act, the agency should not count as either income or resources the per capita distributions paid to members age 55 and older from funds received under the Settlement Agreement.